PDA invalid since the lifting of emergency in 2011, says Asfia

Sarawak Legislative Assembly Speaker Datuk Amar Mohamad Asfia Awang Nassar. — dayakdaily.com
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KUCHING, Oct 18: The Petroleum Development Act 1974 (PDA) is invalid since the state of emergency was lifted in December 2011, which meant that it is reductio ad absurdum.

State Legislative Assembly (DUN) Speaker Datuk Amar Mohd Asfia Awang Nassar, in a statement, said the one and only reason why the PDA could not be challenged was because it was passed during the time of Emergency (1969 – 2011).

“As a Parliamentary Democracy with an open market, Malaysia cannot be forever under an Emergency,” he added.

He pointed out that the Sarawak Oil Mining Ordinance 1958 (OMO), which was passed in the DUN 16 years before PDA in Parliament, stated in Section 3 that “(1) Any person found to be exploring, prospecting or mining for crude oil, petroleum or natural gas upon any land or doing any act with a view to such exploring, prospecting or mining on the same and without having received lawful authority so to do under any of the provisions of this Ordinance or in breach of any of the conditions thereof, shall be guilty of an offence”.

“Section 8 of the OMO states – A licence or lease shall not be assigned without the previous consent in writing of the Governor in Council.”

“Section 15 of the OMO states – The Governor in Council may grant an oil exploration licence over the lands specified therein subject to the payment by the licensee of the prescribed fee,” he said.

Asfia added that the 10th Schedule, Part V, Item 3 of the Federal Constitution reads: “So long as the royalty levied by the State on any mineral chargeable with export duty other than tin (but including mineral oils) does not amount to 10 percent ad valorem calculated as for export duty, export duty on that mineral or such part of the export duty as makes the total of royalty and duty on exported mineral up to 10 percent ad valorem so calculated.”

Unlike the 10th Schedule, he said Part V, Item 3 of the Federal Constitution, Section 4 of the Petroleum Development Act, 1974, stated that “In return for the ownership and the rights, powers, liberties and privileges vested in it by virtue of this Act, the Corporation shall make to the Government of the Federation and the Government of any relevant State such cash payment as may be agreed between the parties concerned.”

He went on to cite Article 74 of the Federal Constitution which read:

(1) Without prejudice to any power to make laws conferred on it by any other Article, Parliament may make laws with respect to any of the matters enumerated in the Federal List or the Concurrent List (that is to say, the First or Third List set out in the Ninth Schedule).

(2) Without prejudice to any power to make laws conferred on it by any other Article, the Legislature of a State may make laws with respect to any of the matters enumerated in the State List (that is to say, the Second List set out in the Ninth Schedule) or the Concurrent List.

(3) The power to make laws conferred by this Article is exercisable subject to any conditions or restrictions imposed with respect to any particular matter by this Constitution.

(4) Where general as well as specific expressions due in describing any of the matters enumerated in the Lists set out in the Ninth Schedule the generality of the former shall not be taken to be limited by the latter.

Asfia also mentioned Article 77 of the Federation Constitution, which reads: “The Legislature or a State shall have power to make laws with respect to any matter not enumerated in my of the Lists set out in the Ninth Schedule, not being a matter in respect of which Parliament lids power to make laws.”

In addition, he said the 9th Schedule Item 8(j) of the Federal Constitution stated that “Subject to item 2(c) in the State List: Development of mineral resources; mines, mining, minerals and mineral ores; oils and oil fields; purchase, sale, import and export of minerals and mineral ores; petroleum products; regulation of labour and safety in mines and oil fields.” — DayakDaily